As numerous statistical studies have noted, the modern Supreme Court has overruled itself at a rate that far exceeds that which prevailed during the Court's early years. But is the accelerated rate a result of a decay in the Court's doctrine of stare decisis? Several critics have presumed so without engaging in any historical analysis. In this Article, Professor Lee offers a detailed historical examination of the evolution of the Supreme Court's overruling rhetoric. The author traces the evolution of important strands of the Rehnquist Court's doctrine of stare decisis from founding-era treatises to early applications in the Marshall and Taney Courts.
For the most part, Professor Lee concludes that the internal inconsistencies and contradictions in the Rehnquist Court's overruling rhetoric are the product of an inherent tension in the countervailing policies at stake, not of a recent deterioration of historically stringent standards of stare decisis. In the founding era, as in the Rehnquist Court, the primary tension in the doctrine concerned the extent of the Court's power to overrule decisions now deemed erroneous. The solution conceived in the founding era and applied in the Marshall Court was the recognition of a single exception to the rule of stare decisis, an exception that charted a compromise course between the extreme positions advocated in the Rehnquist Court's opinions. History also supports the Rehnquist Court's notion that the rule of stare decisis is strongest in cases involving commercial reliance interests, but that error-correction is freely available where no such interests are at stake.
Professor Lee identifies one strand of the Rehnquist Court's doctrine of precedent that does appear to be a product of the twentieth century. The notion that the constitutional or statutory nature of a precedent affects its susceptibility to reversal was largely rejected in the founding era and did not gain majority support until well into the twentieth century.
Thomas R. Lee,
Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court,
52 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol52/iss3/2